The Honorable Sandra Day O’Connor, Associate Justice of 

the United States Supreme Court (Ret.), sitting by designation

pursuant to 28 U.S.C. § 294(a).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3179

LIN XING JIANG,

Petitioner,

v.

ERIC H. HOLDER, Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A78-745-524

ARGUED MAY 18, 2010—DECIDED MARCH 18, 2011

Before O’CONNOR , Associate Justice, and KANNE, and 

ROVNER, Circuit Judges.

ROVNER, Circuit Judge. The Board of Immigration Appeals sought to return Lin Xing Jiang to China after
2 No. 09-3179

she arrived on U.S. soil without proper permission to

enter. After her initial request for asylum was denied,

and the time for filing a petition for review or a motion

to reopen the proceedings had run, Jiang filed a motion

to reopen the proceedings with the Board, alleging a

change of circumstances in China supported her claim

for relief. The Board found that the evidence she sought

to offer either was available or could have been discovered or presented at the former hearing and denied

the motion to reopen. Jiang petitioned this court to

review the order of the Board. We affirm.

I.

Jiang, a native and citizen of China, entered St. John,

United States Virgin Islands, on September 22, 2000. The

Immigration and Naturalization Service, now the Department of Homeland Security, charged Jiang as being an

alien present in the United States without being admitted or paroled and began removal proceedings.

Jiang filed for asylum, claiming that she had been forced

to abort a pregnancy by the Chinese government. On

December 20, 2002, Jiang appeared before an immigration judge who concluded that her story was not

credible and denied her application for asylum, withholding of removal, and protection under the Convention Against Torture. (R. 146-158). Jiang appealed the

immigration judge’s decision to the Board, which,

on March 18, 2004, affirmed the decision without an accompanying opinion. (R. 105). The statutory ninetyday deadline for appeals passed without word from Jiang.
No. 09-3179 3

Over four years later, Jiang filed a motion to reopen her

proceedings, claiming that she had new and material

evidence not discoverable or available at her former

hearing, and thus her untimely petition should be permitted under the regulatory exception to the time limits

for motions to reopen based on changed country conditions, citing 8 C.F.R. § 1003.2(c)(3)(ii). For the first time,

Jiang argued that she feared persecution based on her

Catholic religion. She also cited as new evidence the

fact that since the time of the last hearing, when she

was pregnant with her first child, she had given birth to

two children in the United States in violation of China’s

family planning policies.

Jiang informed the Board that she was baptized as a

Catholic soon after birth and that both she and

her family have continued to practice Catholicism to this

day—she in the United States, and her family in underground, unregistered churches in China. Jiang alleges

that her family arranged for her to leave China for the

United States so that she could continue to practice her

religion and because they feared she could not adhere

to China’s restrictive population control policy. Jiang

argued that circumstances had worsened for practicing Catholics in China, and that should the United

States remove her to China, she would return to her

former underground Catholic church and risk persecution. Finally, Jiang stated that although she had told her

immigration lawyer that she had grown up in a Catholic

family in China and was a practicing Catholic, he did not

include a claim for religious persecution in her initial

petition for asylum.
4 No. 09-3179

The Board concluded that Jiang had not submitted

adequate evidence to support reopening, and that the

articles and reports Jiang submitted did not show that

members of underground churches were in more

danger than they had been at the time of her hearing in

2002. (R. 3). The Board noted that Jiang did not

specifically claim in her motion that her former counsel

provided ineffective assistance of counsel and, in any

event, failed to meet the requirements of such a claim.

(R. 4). Finally, the Board concluded that Jiang did not

submit a new asylum application as is required when

filing a motion to reopen. Id at n.1. On August 5, 2009,

the Board denied Jiang’s motion to reopen. Id.

Jiang petitioned this court for review of the Board’s

decision denying the motion to reopen, a decision the

Supreme Court has held we have jurisdiction to review. Kucana v. Holder, 130 S. Ct. 827, 831 (2010). Our

review, however, defers to the decision of the Board

unless it has abused its discretion, that is, unless it has

made its decision without rational explanation, departs

from established policies without explanation, or rests

on an impermissible basis such as invidious discrimination. See Xiao Jun Liang v. Holder, 626 F.3d 983, 988 (7th

Cir. 2010). For the reasons set forth below, we find it

has not, and thus deny the petition.

II.

Under the Immigration and Nationality Act, an asylum

seeker may collaterally attack a final order of removal

by filing a motion to reopen with the Board, which, in
No. 09-3179 5

its discretion, it may grant or deny. 8 U.S.C. § 1229a(c)(7);

8 C.F.R. § 1003.2(a). A motion to reopen based on

changed country conditions is exempt from the usual

ninety-day statutory deadline for filing such motions

so long as the evidence of the changed conditions

“is material and was not available and would not

have been discovered or presented at the previous proceeding.” 8 U.S.C.A. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii); Zhao v. Gonzales, 440 F.3d 405, 407 (7th

Cir. 2005).

The petitioner concedes that the evidence she

presents “is technically not new evidence [but] was not

available at the initial hearing because her attorney failed to present it,” and that “she did not have an

opportunity to present all her persecution claims.”

(Brief of Petitioner at 13). This argument, however, is one

claiming ineffective assistance of counsel, not changed

country conditions. After all, according to Jiang, she has

been a practicing Catholic all of her life, and the abuse

of Catholics by the Chinese government was well-documented when Jiang first appeared before the immigration court in 2002. What she argues is not that the information was not available to her at the time of the

hearing, but that her attorney was ineffective for failing

to present it—or to inform her that a claim of persecution based on her religion would be relevant.

Asylum seekers hold no Sixth Amendment right to

counsel. Toure v. Holder, 624 F.3d 422, 430 (7th Cir. 2010).

“[N]o statute or constitutional provision entitles an

alien who has been denied effective assistance of counsel
6 No. 09-3179

In Matter of Compean (Compean I), 24 I. & N. Dec. 710 (AG 1

2009), the Attorney General concluded that the “Constitution

does not confer a constitutional right to effective assistance of

(continued...)

in . . . her removal proceeding to reopen the proceeding

on the basis of that denial.” Jezierski v. Mukasey, 543 F.3d

886, 889 (7th Cir. 2008) (citations omitted) cert. denied, 129

S. Ct. 1662 (2009). This Circuit has recognized, nevertheless, that the denial of effective assistance of counsel may

under certain circumstances violate the due process

guarantee of the Fifth Amendment. Toure, 624 F.3d at 430.

The Board long ago recognized this potential for a due

process violation in Matter of Lozada, 19 I. & N. Dec. 637,

638 (BIA 1988) (“Ineffective assistance of counsel in a

deportation proceeding is a denial of due process only

if the proceeding was so fundamentally unfair that

the alien was prevented from reasonably presenting his

case.”). And in this same case, the Board held that an

asylum seeker must do three things to raise an ineffectiveness claim: (1) submit an affidavit establishing that

she had an agreement with counsel to represent her

and detailing its terms; (2) present evidence that she has

given notice to her counsel of the ineffectiveness claim

and an opportunity to respond to the allegations, and

include any response she has received; and (3) if the

attorney violated his ethical or legal obligations, show

that she has filed a complaint with the governing disciplinary authorities or explain why she has not done so.

Matter of Lozada, 19 I. & N. Dec. at 639. We have sus- 1
No. 09-3179 7

(...continued) 1

counsel in removal proceedings,” either through the Fifth or

Sixth Amendments, thus overruling, in part, Matter of Lozada. Id.

at 714. Later that year, the Attorney General vacated the

Compean I decision, Matter of Compean (Compean II), 25 I. & N.

Dec. 1 (AG 2009), and ordered the Executive Office of Immigration Review to reinstate use of the Lozada standards pending a

comprehensive review of the rules in this area. Id. at 2-3. In any

event, the Board adjudicated Jiang’s ineffective assistance claim

under the law that existed prior to the decision in Compean I. 

tained repeatedly the validity of these requirements. See

Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008);

Jezierski, 543 F.3d at 889; Stroe v. INS, 256 F.3d 498, 501

(7th Cir. 2001). Jiang cites several Ninth Circuit cases for

the proposition that failure to comply with the Lozada

requirements is not fatal to a motion to reopen, but this

Circuit, however, has stated that “satisfying the requirements of Lozada is a necessary condition to obtaining

reopening on the basis of ineffective assistance of counsel.” Jezierski, 543 F.3d at 889. Even if it were not, we

certainly could not say that the Board abused its discretion by requiring some compliance with Lozada, where

Jiang has failed to satisfy even one of the Lozada requirements or to even articulate a specific claim of ineffective assistance. See Patel v. Gonzales, 496 F.3d 829, 831 (7th

Cir. 2007).

Even were we to construe Jiang’s argument as a claim

of changed conditions rather then a claim for ineffective
8 No. 09-3179

assistance of counsel, Jiang failed to demonstrate that

there were material changes in the relevant circumstances

in China. Joseph v. Holder, 579 F.3d 827, 833-34 (7th

Cir. 2009); 8 C.F.R. § 1003.2(c)(3)(ii). A changed circumstance need not reach the level of a broad social or

political change in a country; a personal or local change

might suffice. Joseph, 579 F.3d at 834. Nevertheless, there

must be evidence of some material changed circumstances. Cumulative evidence that the conditions asserted in the original application persisted fails to meet

this burden. Zhao, 440 F.3d at 407.

Jiang submitted several internet news reports posted

in 2008 by an organization called Chinaaid that

recounted incidents in which practicing Catholics were

abused. The Board noted that the evidence in the record

at the time of Jiang’s initial hearing indicated that

China had a terrible human rights record of religious

persecution against unapproved religious groups

including Catholics. The Board referenced the 2000 U.S.

Department of State Country Report on Human Rights

Practices in China (2000 Country Report), which

included evidence that officials razed or confiscated

churches and places of worship, broke up services, harassed leaders and adherents, at times fining, detaining,

imprisoning, beating, and torturing them. (R. 268) (2000

Country Report). The Board also noted that according

to Jiang’s own affidavit, she and her family suffered

religious persecution before she came to the United States.

(R. 4). A letter from Jiang’s friend that Jiang submitted

as evidence of changed circumstances states that, “the

situation in China is still the same as time [sic] you left
No. 09-3179 9

Although the 2009 Country Report was not part of the record 2

below, we still may take judicial notice of it. See Ayele v. Holder,

564 F.3d 862, 873 (7th Cir. 2009). And although Country Reports

have limited utility in some circumstances, see Galina v. I.N.S.,

213 F.3d 955, 959 (7th Cir. 2000), they can serve as one useful

form of comparison in examining changes in country conditions. Id.

China.” (R. 63). The articles and evidence submitted by

Jiang merely support the proposition that the human

rights abuses present at the time of her original hearing

in 2002 continue to this day.

Indeed, the State Department’s 2009 Country Report

includes similar reports of surveillance, harassment, and

persecution of Catholics. Nevertheless, this most recent

Country Report may offer a glimmer of optimism for

practicing Catholics as the report notes that “the distinction between the official Catholic Church, which the

government controlled politically, and the unregistered

Catholic Church was less distinct than in the past. U.S.

Dept. Of State Country Reports on Human Rights

Practices in China, 2009. In some official Catholic 2

churches, clerics led prayers for the Pope, and pictures

of the Pope were displayed.” Id.

Nor can Jiang rely on her claim that because she

has had two children in the United States she will face

persecution in China for violations of that country’s onechild policy. That argument has been vetted in this court

and rejected. See Joseph, 579 F.3d at 834. Cheng Chen v.

Gonzales, 498 F.3d 758, 760 (7th Cir. 2007). This is not to say
10 No. 09-3179

that an applicant for asylum must show some broad

social or political alteration in the country conditions, as

opposed to a more personal or local modification, but an

applicant cannot claim changed country conditions based

on her own actions in the United States when the conditions in the country of origin have not materially

changed. Joseph, 579 F.3d at 834. Jiang has offered no

evidence that the population control efforts and onechild policy have materially changed since the date of

her initial hearing.

Finally, the Board in a footnote also commented

that Jiang failed to submit a new asylum application

with her motion to reopen, as is required by its regulations. (R. 4). See 8 C.F.R. § 1003.2(c)(1). The Board did not

state that it denied the petition based on this failing, but

it was within its discretion to do so. See Conti v. I.N.S., 780

F.2d 698, 701 (7th Cir. 1985) (“failure to comply with

the procedural requirements for a valid motion to

reopen alone is normally sufficient to overcome the

contention that the denial of such a motion was an abuse

of discretion”); see also Patel, 496 F.3d at 831.

In her brief to this court, Jiang raises several other

arguments regarding the merits of her original asylum

claim, namely that she would suffer persecution if

returned to China because of her coerced abortion, her

opposition to, and violations of China’s family planning

policy. These arguments, however, attack the Board’s

2004 decision which Jiang chose not to appeal and

cannot appeal at this late date. See Stone v. I.N.S., 514 U.S.

386, 405 (1995); Ajose v. Gonzales, 408 F.3d 393, 394-95 (7th
No. 09-3179 11

Cir. 2005). The only decision before this court is the

Board’s August 5, 2009 decision denying Jiang’s motion

to reopen. 

The Board did not abuse its discretion in denying

Jiang’s motion to reopen the proceedings. The petition for

review is therefore DENIED.

3-18-11